Com. v. Kirsch, J. ( 2014 )

J-S61033-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JEROME REGIS KIRSCH, JR., :
:
Appellant : No. 688 WDA 2014
Appeal from the Order April 24, 2014,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0003050-2011
BEFORE: FORD ELLIOTT, P.J.E., WECHT and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 07, 2014
Jerome Regis Kirsch, Jr. (Appellant), appeals from the order entered
on April 24, 2014, dismissing his petition filed pursuant to the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. We affirm.
The background underlying this matter was summarized by a prior
panel of this Court.
16, 2010[,] at which time [Appellant] was charged at
with two counts of Involuntary Deviate Sexual
Intercourse[,] three counts of Criminal Solicitation[,] two
counts of Aggravated Indecent Assault[,] two counts of
Endangering the Welfare of Children, two counts of
Indecent Exposure, two counts of Corruption of Minors,
and one count of Indecent Assault. [Appellant] was also
charged at [docket number] CC[]201201972 [(hereinafter
On August 7, 2012, [Appellant] entered into a negotiated
plea agreement at [docket number 3050. Pursuant to the
* Retired Senior Judge assigned to the Superior Court.
J-S61033-14
agreement, Appellant agreed to plead guilty to the
following counts:] Count 7 (Endangering the Welfare of a
Child), Count 9 (Indecent Exposure), Count 11 (Corruption
of Minors)[,] and Count 13 (Indecent Assault)[. In
exchange, the Commonwealth agreed to withdraw the
remaining charges at the docket number and recommend
docket number 1972, Appellant] also entered into a plea
agreement pursuant to which [Appellant] would plea[d
guilty to theft and receive a sentence of probation.]
Commonwealth v. Kirsch, 93 A.3d 501 (Pa. Super. 2013) (unpublished
memorandum at 1-2) (citation omitted).
The trial court sentenced Appellant at docket number 3050 to an
aggregate term of 10 years of probation and at docket number 1972 to a 2
year term of probation. Appellant did not file a direct appeal.
Appellant timely filed a PCRA petition. The PCRA court appointed
counsel to represent Appellant, and counsel filed an amended PCRA petition.
assistance by coercing and threatening Appellant into taking the plea
agreement. According to Appellant, coun
plea unknowing, involuntary, and unintelligent.
The PCRA court scheduled a hearing for March 18, 2013. When
Appellant failed to appear at the hearing, the Commonwealth moved to
dismiss the PCRA petition for failure to prosecute. The PCRA court granted
On April 15, 2013, [Appellant] filed a [m]otion for
[r]econsideration of the March 18, 2013 order[.] In his
[p]etition, [Appellant averred] the following:
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...
[] 11. [On August 24, 2012, Appellant was arrested for
an alleged violation of his probation.] On March 7,
2013, [Appellant] was released from the Allegheny
County Jail.
12. By order dated March 7[, 2013 and entered March
11, 2013, the PCRA court scheduled a hearing on
p]etition.
became aware of the March 18, 2013 PCRA hearing
each
[Appellant] prior to the March 18, 2013 evidentiary
hearing.
Commonwealth appeared for the hearing scheduled for
that date[. Appellant] failed to ap
that Appellant] received notice of the March 18, 2013
jail[. The Commonwealth] orally moved to dismiss
to prosecute[. The PCRA court granted the
16. The following week, a warrant was issued for
[A
and lodged in the Allegheny County Jail.
17. On or about April 5, 2013, [Appellant] notified [his
counsel] that he [did not] receive notice of the March
18, 2013 hearing.[]
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On April 15, 2013, the PCRA
motion for reconsideration and, that day, Appellant filed a timely
Commonwealth v. Kirsch, 93 A.3d 501 (Pa. Super. 2013) (unpublished
memorandum at 4-5) (citation omitted).
On appeal, Appellant raised a number of issues, including whether the
PCRA court erred by dismissing his PCRA petition for failure to prosecute
without holding a hearing. This Court concluded that the PCRA court did err
in this regard. Consequently, the Court vacated the order dismissing
instructions. More specifically, this Court directed the PCRA court to hold a
2013, hearing was voluntary or the result of a lack of notice to Appellant.
failure to appear was the result of lack of notice, the court must then hold a
The PCRA court held a hearing on April 10, 2014. At the beginning
and end of the hearing, the court stated that it would assume that Appellant
did not receive notice of the March 18, 2013, hearing and that it would
decide the petition on its merits. Appellant and plea counsel were the only
witnesses to testify at the hearing.
On April 24, 2014, the PCRA court entered an order dismissing
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simultaneously filed a Pa.R.A.P. 1925(b) statement wherein he raised the
same issue we noted above, i.e., trial counsel was ineffective by coercing
1925(b) statement by authoring an opinion. The court concluded, inter alia,
that Appella
plea.
In his brief to this Court, Appellant asks us to consider the question
that follows.
unintelligent, and entered as a result of ineffective assistance of
counsel as [plea counsel] threatened/coerced [Appellant] into
pleading guilty by representing that [Appellant] would be
convicted if he went to trial and would receive a sentence of 20
to 40 years [of] incarceration?
omitted).
Appellant summarizes his argument in support of his issue as follows.
ellant] into
accepting the plea agreement with threats that [Appellant]
would get convicted if he went to trial and that he would receive
a sentence of 20 to 40 years in prison. Plea counsel had no
reasonable basis for making such threats. [Appellant] suffered
prejudice because, but for said coercion/threats, he would not
Id. at 10.
Our standard in reviewing a PCRA court order is abuse of
discretion. We determine only whether the court's order is
supported by the record and free of legal error. This Court
grants great deference to the findings of the PCRA court, and we
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will not disturb those findings merely because the record could
support a contrary holding. We will not disturb the PCRA court's
findings unless the record fails to support those findings.
A criminal defendant has the right to effective counsel
during a plea process as well as during trial. A defendant is
permitted to withdraw his guilty plea under the PCRA if
ineffective assistance of counsel caused the defendant to enter
an involuntary plea of guilty.
We conduct our review of such a claim in accordance
with the three-pronged ineffectiveness test under section
9543(a)(2)(ii) of the PCRA, 42 Pa.C.S.A. § 9543(a)(2)(ii).
The voluntariness of the plea depends on whether
counsel's advice was within the range of competence
demanded of attorneys in criminal cases.
In order for [an a]ppellant to prevail on a claim of
ineffective assistance of counsel, he must show, by a
preponderance of the evidence, ineffective assistance of
counsel which, in the circumstances of the particular case,
so undermined the truth-determining process that no
reliable adjudication of guilt or innocence could have taken
place. [An a]ppellant must demonstrate: (1) the
underlying claim is of arguable merit; (2) that counsel had
no reasonable strategic basis for his or her action or
inaction; and (3) but for the errors and omissions of
counsel, there is a reasonable probability that the outcome
of the proceedings would have been different. The
petitioner bears the burden of proving all three prongs of
the test.
Moreover, trial counsel is presumed to be effective.
Commonwealth v. Rathfon, 899 A.2d 365, 369 (Pa. Super. 2006)
(citations and quotation marks omitted).
During his plea colloquy, Appellant was asked whether any threats or
promises, other than the potential plea agreement, may have influenced his
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Id. In addition, Appellant
advice and representation.1 Id. at 12-
statements, and he may not now assert grounds for withdrawing the plea
Commonwealth v. Timchak, 69 A.3d
765, 774 (Pa. Super. 2013).
For these reasons, we conclude that the PCRA court properly dismissed
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
1
In his written explanation of his guilty plea, Appellant stated that no one
forced him to enter his plea, that he was entering his plea on his free will,
and that no one had threatened him to enter the plea. Guilty Plea
-55. Appellant further
l advice and
representation. Id. at ¶61.
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